MS 2020-10-P-Booker-September-29-2020-Expungement-of-Drug-Related-DUIs September 29, 2020

Can a Mississippi municipal court expunge a first-offense drug-related DUI?

Short answer: The AG concluded that a Mississippi municipal court could expunge a first-offense drug-related DUI that had been nonadjudicated under Section 63-11-30(14), but could not expunge any DUI conviction. Conviction expungements are reserved exclusively to the circuit courts.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

A municipal court judge asked whether her court could expunge drug-related DUI charges. The AG split the answer into two parts.

Convictions: no. Section 63-11-30(13)(a) allows expungement of a first-offense DUI conviction (with significant prerequisites: at least five years after successful completion of the sentence, no test refusal, blood alcohol below 0.16% if available, no other DUI convictions or pending cases, justification provided to the court, no prior nonadjudication or expunction of a DUI). But the statute routes that conviction-expungement petition to "the circuit court of the county in which the conviction was had." A municipal court judge has no authority to expunge a DUI conviction.

Charges that were nonadjudicated: yes. Section 63-11-30(14) authorizes nonadjudication of a first-offense DUI, including drug-related DUIs (subsection (14)(c)(i)(4)(b) explicitly references operating a vehicle under the influence of a substance other than alcohol that has impaired the person's ability to operate a vehicle, and includes a 120-day program with court-ordered drug testing). The AG had previously opined in MS AG Op., Wilson (March 16, 2017) that Section 63-11-30(14) authorizes the nonadjudicating court to expunge the nonadjudicated charge and arrest record, either automatically or upon petition. Sections 99-15-26(5) and 21-23-7(13) also provide expungement authority that municipal courts can use for a nonadjudicated DUI.

One thing the municipal court cannot expunge: the confidential record of the nonadjudication that is kept at the Department of Public Safety under Section 63-11-30(14). That record is statutory and stays put.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the difference between a DUI conviction and a DUI nonadjudication?

A conviction means the court accepted a plea or returned a verdict and entered judgment. A nonadjudication is a Section 63-11-30(14) program where the court does not enter the conviction provided the defendant complies with conditions (like a 120-day drug testing program for drug-related DUIs). Successful completion means the defendant was never convicted; failure can result in conviction.

Why can the circuit court expunge a DUI conviction but not the municipal court?

Because Section 63-11-30(13)(a) routes the petition specifically to the circuit court of the county where the conviction was had. Statutes that direct expungement authority to a particular court are read to exclude other courts.

Can a municipal court expunge a DUI charge that ended in dismissal?

The opinion focused on nonadjudication. Sections 99-15-26(5) and 21-23-7(13) give municipal courts general expungement authority that can apply in other dispositions too, but the specific facts of any dismissal would matter.

Is automatic expungement actually automatic?

Section 63-11-30(14) is read by the AG as authorizing automatic expungement by the nonadjudicating court (or upon petition) of the public record of the arrest and charge. Earlier AG guidance (Wilson, March 16, 2017) treated automatic expungement as the corollary of the statute's confidential-registry mandate, since otherwise the registry would be undermined.

Is there a confidential record that survives expungement?

Yes. The Department of Public Safety keeps a confidential record under Section 63-11-30(14) that cannot be expunged. It is used to ensure the nonadjudication is one-time only.

Background and statutory framework

Section 63-11-30(13)(a) authorizes circuit courts to expunge first-offense DUI convictions five years after completion of the sentence, with the listed prerequisites.

Section 63-11-30(14) authorizes nonadjudication of first-offense DUI charges, with subsection (14)(c)(i) detailing the program requirements. Subsection (14)(c)(i)(4)(b) covers drug-related DUIs:

If the court determines that the person violated this section by operating a vehicle when under the influence of a substance other than alcohol that has impaired the person's ability to operate a motor vehicle, including any drug or controlled substance which is unlawful to possess under the Mississippi Controlled Substances Law, the person must submit to a one-hundred-twenty-day period of a nonadjudication program that includes court-ordered drug testing at the person's own expense not less often than every thirty (30) days, during which time the person may drive if compliant with the terms of the program, or suffer a one-hundred-twenty-day suspension of the person's regular driver's license, during which time the person will not operate any vehicle.

Section 99-15-26(5) and Section 21-23-7(13) provide additional municipal-court expungement authority for nonadjudicated charges.

MS AG Op., Wilson at *1-2 (March 16, 2017), is the controlling earlier opinion treating Section 63-11-30(14) as authorizing automatic expungement by the nonadjudicating court of the arrest and charge record, while preserving the confidential DPS registry.

The opinion is signed by Special Assistant Attorney General Gregory Alston on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 63-11-30(13)(a) (DUI conviction expungement, circuit court only)
Miss. Code Ann. Section 63-11-30(14) (DUI nonadjudication and expungement)
Miss. Code Ann. Section 63-11-30(14)(c)(i) (program requirements)
Miss. Code Ann. Section 63-11-30(14)(c)(i)(4)(b) (drug-related DUI)
Miss. Code Ann. Section 99-15-26(5) (justice/municipal court expungement)
Miss. Code Ann. Section 21-23-7(13) (municipal court expungement)
MS AG Op., Wilson at *1-2 (March 16, 2017)

Source

Original opinion text

September 29, 2020

The Honorable Patricia A. Booker
Lambert Municipal Court Judge
Post Office Box 1198
Lambert, Mississippi 38643

Re: Expungement of Drug-Related DUIs

Dear Judge Booker:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

Are drug-related DUIs eligible for expungement by a municipal court judge?
If the answer to Question Number 1 is "yes," what are the criteria for expunging such DUI charges?

Brief Response

In response to your first question, yes. The charge and arrest record of a first-offense drug-related DUI that has been nonadjudicated may be expunged by the nonadjudicating court, including municipal courts. However, a municipal court judge is not authorized to expunge DUI convictions; that role is specifically reserved for the circuit courts of Mississippi.

In response to your second question, Section 63-11-30(14) authorizes expungement of a nonadjudicated DUI charge and arrest record by the nonadjudicating court automatically or upon petition. Additionally, a municipal judge may expunge a nonadjudicated DUI pursuant to Sections 99-15-26(5) or 21-23-7(13).

Applicable Law and Discussion

Mississippi Code Annotated Section 63-11-30(13)(a) authorizes, under certain circumstances, expungement of first-offense convictions for driving under the influence ("DUI"), providing, in pertinent part:

(13) Expunction. (a) Any person convicted under subsection (2) or (3) of this section of a first offense of driving under the influence and who was not the holder of a commercial driver's license or a commercial learning permit at the time of the offense may petition the circuit court of the county in which the conviction was had for an order to expunge the record of the conviction at least five (5) years after successful completion of all terms and conditions of the sentence imposed for the conviction. Expunction under this subsection will only be available to a person: (i) Who has successfully completed all terms and conditions of the sentence imposed for the conviction; (ii) Who did not refuse to submit to a test of his blood or breath; (iii) Whose blood alcohol concentration tested below sixteen one-hundredths percent (.16%) if test results are available; (iv) Who has not been convicted of and does not have pending any other offense of driving under the influence; (v) Who has provided the court with justification as to why the conviction should be expunged; and (vi) Who has not previously had a nonadjudication or expunction of a violation of this section.

Miss. Code Ann. § 63-11-30(13)(a) (emphasis added). Accordingly, a municipal court judge is not authorized to expunge any DUI conviction in Mississippi.

However, a municipal court does have authority to expunge a first-offense DUI charge that was nonadjudicated by that court. This office has previously opined that the record related to a charge of first-offense DUI, which has been nonadjudicated, may be expunged by the nonadjudicating court. MS AG Op., Wilson at *1 (Mar. 16, 2017) (citing Section 63-11-30(14) and finding that "[i]t is the opinion of this office that the provision for a confidential registry authorizes automatic expungement by the nonadjudicating court, or upon petition, of the public record of the arrest and charge. To not expunge the record nullifies the mandated provision of the confidential registry.").

In addition to our finding in Wilson that Section 63-11-30(14) authorized an automatic expungement of a nonadjudicated DUI charge, we also opined that a nonadjudicated, first-offense DUI may be expunged by a justice or municipal court, pursuant to Section 99-15-26(5), or, separately, by a municipal court, pursuant to Section 21-23-7(13). MS AG Op., Wilson at *1-2 (Mar. 16, 2017).

Nonadjudication of a DUI is governed by, and must be granted only by strict compliance with, Section 63-11-30(14). Section 63-11-30(14)(c)(i) requires a court granting a DUI nonadjudication to order the defendant to make certain payments, attend certain programs, and impose other requirements, and includes the following provision:

If the court determines that the person violated this section by operating a vehicle when under the influence of a substance other than alcohol that has impaired the person's ability to operate a motor vehicle, including any drug or controlled substance which is unlawful to possess under the Mississippi Controlled Substances Law, the person must submit to a one-hundred-twenty-day period of a nonadjudication program that includes court-ordered drug testing at the person's own expense not less often than every thirty (30) days, during which time the person may drive if compliant with the terms of the program, or suffer a one-hundred-twenty-day suspension of the person's regular driver's license, during which time the person will not operate any vehicle.

Miss. Code Ann. § 63-11-30(14)(c)(i)(4)(b) (emphasis added). This language explicitly covers drug-related DUIs. Accordingly, a drug-related DUI may be nonadjudicated in strict conformance with Section 63-11-30(14).

As discussed above, a municipal judge may expunge a nonadjudicated DUI pursuant to Sections 99-15-26(5) or 21-23-7(13). Moreover, automatic expungement of a nonadjudicated DUI is authorized by Section 63-11-30(14). MS AG Op., Wilson at *1 (Mar. 16, 2017).

As further noted in Wilson, the confidential record of the nonadjudication kept at the Department of Public Safety, pursuant to 63-11-30(14), cannot be expunged. Id.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL

By: /s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General